FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
April 4, 2023
In the Court of Appeals of Georgia A23A0461. TATE v. HABIF et al.
BROWN, Judge.
Geffry Tate, pro se, appeals the superior court’s order dismissing his claims
against defendants Michael A. Habif d/b/a Habif Properties and Habif Properties,
LLC (collectively “Habif”). Because the superior court incorrectly concluded that
Tate’s claims were barred by the doctrine of res judicata, we reverse.
“We review de novo the trial court’s grant of a motion to dismiss. A motion to
dismiss may be granted only where a plaintiff would not be entitled to relief under
any set of facts that could be proven in support of the plaintiff’s claim.” (Citation and
punctuation omitted.) Burrowes v. Tenet Healthsystem GB, 319 Ga. App. 389, 390-
391 (735 SE2d 131) (2012). So viewed, the record shows that Habif filed a
dispossessory action against Tate “and all other occupants” of a commercial lease in the Magistrate Court of Fulton County on November 2, 2020, in which it sought
possession of the premises and past due rent in the amount of $28,941. Tate filed an
answer and counterclaim seeking damages in the amount of $198,700 as a result of
Habif’s failure to repair the property. Tate also filed statements in support of his
answer and counterclaim as to why Habif was not entitled to evict Tate or secure a
money judgment and why Habif “owe[d]” Tate, which provided that Habif
“committed a breach of the Lease Agreement and Fraud to induce me into signing a
lease. Which caused our Business and Church to suffer a loss of over $198,700.00.
Repairs and replacement to interior, exterior and grounds [were] not completed per
our agreement and Georgia Law OCGA § 13-6-14.” Following a hearing, the
magistrate court issued an order on February 5, 2021, awarding Habif a writ of
possession and $15,000 in rental payments through February 12, 2021. The court’s
order indicated that Tate’s counterclaim was “VOLUNTARILY DISMISSED by
tenant so that he can file in state court — damages of $198,700 claimed by tenant
which exceeds Magistrate Court jurisdiction per OCGA § 15-10-2 (5).” This portion
of the order was handwritten by the magistrate judge and the pre-printed words
“DISMISSED WITHOUT PREJUDICE” were crossed out with the words
“VOLUNTARILY DISMISSED” written above.
2 Tate filed this action against Habif in the Superior Court of Fulton County on
November 29, 2021, alleging claims for fraud, breach of contract, harassment, false
reporting to credit bureaus, and personal injury, and seeking damages in the amount
of $2,091,654. In particular, Tate alleged that Habif committed fraud by inducing
Tate to “sign[ ] a lease . . . stating all grounds, roof repairs or replacement . . . would
be immediately replaced or repaired”; that the failure to repair caused flooding which
resulted in mildew and black mold; and that this continued exposure to mildew and
black mold has caused health problems for Tate and other family members. Tate also
alleged that on August 3, 2021, Habif opened a derogatory account with a credit
bureau stating that Tate owes Habif $59,507, causing Tate’s credit score to drop
dramatically. Habif moved to dismiss the complaint on the ground of res judicata. The
superior court granted the motion, finding that the claims brought by Tate in the
instant action
were conclusively litigated in the prior action in the Magistrate Court of Fulton County and cannot be re-litigated. [Tate] explicitly asserted his claims that [Habif] breached the lease by failing to make repairs to the subject property and fraudulently induced him into entering the lease by promising to make such repairs as both defenses and counterclaims in the dispossessory action. The Magistrate Court of Fulton County heard and considered these claims and entered judgment in favor of [Habif]
3 and [Tate] did not appeal. The judgment of the Magistrate Court is, therefore, conclusive as to the claims that [Tate] now attempts to re- litigate against [Habif] in this action. OCGA § 9-12-40.
1. While Tate is incorrect that Habif waived the affirmative defense of res
judicata by failing to raise it in its answer, see Gerschick & Assoc., P.C. v. Pounds,
266 Ga. App. 852, 855 (1) (a) (598 SE2d 522) (2004) (“if [res judicata] is raised by
motion, or by special plea in connection with the answer or by motion for summary
judgment there is no waiver”), Tate is correct that his claims in superior court were
not barred by res judicata.
The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Before res judicata applies, three prerequisites must be satisfied — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.
(Citations and punctuation omitted.) Setlock v. Setlock, 286 Ga. 384, 385 (688 SE2d
346) (2010). See also OCGA § 9-12-40 (“[a] judgment of a court of competent
jurisdiction shall be conclusive between the same parties and their privies as to all
matters put in issue or which under the rules of law might have been put in issue in
4 the cause wherein the judgment was rendered until the judgment is reversed or set
aside”). Assuming that the first two prerequisites have been satisfied here, the third
prerequisite has not. With regard to the third prerequisite, the Supreme Court of
Georgia’s holding in Setlock applies.
In Setlock, a son filed a dispossessory action against his father in magistrate
court seeking possession of a lake house. 286 Ga. at 384. The father filed
counterclaims seeking to quiet title, a declaratory judgment, an injunction, and a
money judgment in excess of the $15,000 jurisdictional limit of the magistrate court.
Id. The magistrate court denied the father’s petition to transfer the case to superior
court and entered a judgment granting possession of the lake house to the son and
granting a writ of possession in favor of the son. Id. The father’s attempt to appeal the
judgment to the superior court was dismissed as untimely and he then filed in the
superior court a petition to quiet title, which contained the same claims that he had
previously filed as counterclaims in the magistrate court dispossessory action. Id. The
son moved to dismiss the complaint, and the superior court granted the motion, ruling
“that the doctrine of res judicata barred [the father] from reviving in superior court
the same claims that he had previously asserted as counterclaims in magistrate court.”
Id. The Supreme Court of Georgia reversed, concluding that “although the magistrate
5 court had jurisdiction over [the son’s] dispossessory action, it did not have
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FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
April 4, 2023
In the Court of Appeals of Georgia A23A0461. TATE v. HABIF et al.
BROWN, Judge.
Geffry Tate, pro se, appeals the superior court’s order dismissing his claims
against defendants Michael A. Habif d/b/a Habif Properties and Habif Properties,
LLC (collectively “Habif”). Because the superior court incorrectly concluded that
Tate’s claims were barred by the doctrine of res judicata, we reverse.
“We review de novo the trial court’s grant of a motion to dismiss. A motion to
dismiss may be granted only where a plaintiff would not be entitled to relief under
any set of facts that could be proven in support of the plaintiff’s claim.” (Citation and
punctuation omitted.) Burrowes v. Tenet Healthsystem GB, 319 Ga. App. 389, 390-
391 (735 SE2d 131) (2012). So viewed, the record shows that Habif filed a
dispossessory action against Tate “and all other occupants” of a commercial lease in the Magistrate Court of Fulton County on November 2, 2020, in which it sought
possession of the premises and past due rent in the amount of $28,941. Tate filed an
answer and counterclaim seeking damages in the amount of $198,700 as a result of
Habif’s failure to repair the property. Tate also filed statements in support of his
answer and counterclaim as to why Habif was not entitled to evict Tate or secure a
money judgment and why Habif “owe[d]” Tate, which provided that Habif
“committed a breach of the Lease Agreement and Fraud to induce me into signing a
lease. Which caused our Business and Church to suffer a loss of over $198,700.00.
Repairs and replacement to interior, exterior and grounds [were] not completed per
our agreement and Georgia Law OCGA § 13-6-14.” Following a hearing, the
magistrate court issued an order on February 5, 2021, awarding Habif a writ of
possession and $15,000 in rental payments through February 12, 2021. The court’s
order indicated that Tate’s counterclaim was “VOLUNTARILY DISMISSED by
tenant so that he can file in state court — damages of $198,700 claimed by tenant
which exceeds Magistrate Court jurisdiction per OCGA § 15-10-2 (5).” This portion
of the order was handwritten by the magistrate judge and the pre-printed words
“DISMISSED WITHOUT PREJUDICE” were crossed out with the words
“VOLUNTARILY DISMISSED” written above.
2 Tate filed this action against Habif in the Superior Court of Fulton County on
November 29, 2021, alleging claims for fraud, breach of contract, harassment, false
reporting to credit bureaus, and personal injury, and seeking damages in the amount
of $2,091,654. In particular, Tate alleged that Habif committed fraud by inducing
Tate to “sign[ ] a lease . . . stating all grounds, roof repairs or replacement . . . would
be immediately replaced or repaired”; that the failure to repair caused flooding which
resulted in mildew and black mold; and that this continued exposure to mildew and
black mold has caused health problems for Tate and other family members. Tate also
alleged that on August 3, 2021, Habif opened a derogatory account with a credit
bureau stating that Tate owes Habif $59,507, causing Tate’s credit score to drop
dramatically. Habif moved to dismiss the complaint on the ground of res judicata. The
superior court granted the motion, finding that the claims brought by Tate in the
instant action
were conclusively litigated in the prior action in the Magistrate Court of Fulton County and cannot be re-litigated. [Tate] explicitly asserted his claims that [Habif] breached the lease by failing to make repairs to the subject property and fraudulently induced him into entering the lease by promising to make such repairs as both defenses and counterclaims in the dispossessory action. The Magistrate Court of Fulton County heard and considered these claims and entered judgment in favor of [Habif]
3 and [Tate] did not appeal. The judgment of the Magistrate Court is, therefore, conclusive as to the claims that [Tate] now attempts to re- litigate against [Habif] in this action. OCGA § 9-12-40.
1. While Tate is incorrect that Habif waived the affirmative defense of res
judicata by failing to raise it in its answer, see Gerschick & Assoc., P.C. v. Pounds,
266 Ga. App. 852, 855 (1) (a) (598 SE2d 522) (2004) (“if [res judicata] is raised by
motion, or by special plea in connection with the answer or by motion for summary
judgment there is no waiver”), Tate is correct that his claims in superior court were
not barred by res judicata.
The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Before res judicata applies, three prerequisites must be satisfied — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.
(Citations and punctuation omitted.) Setlock v. Setlock, 286 Ga. 384, 385 (688 SE2d
346) (2010). See also OCGA § 9-12-40 (“[a] judgment of a court of competent
jurisdiction shall be conclusive between the same parties and their privies as to all
matters put in issue or which under the rules of law might have been put in issue in
4 the cause wherein the judgment was rendered until the judgment is reversed or set
aside”). Assuming that the first two prerequisites have been satisfied here, the third
prerequisite has not. With regard to the third prerequisite, the Supreme Court of
Georgia’s holding in Setlock applies.
In Setlock, a son filed a dispossessory action against his father in magistrate
court seeking possession of a lake house. 286 Ga. at 384. The father filed
counterclaims seeking to quiet title, a declaratory judgment, an injunction, and a
money judgment in excess of the $15,000 jurisdictional limit of the magistrate court.
Id. The magistrate court denied the father’s petition to transfer the case to superior
court and entered a judgment granting possession of the lake house to the son and
granting a writ of possession in favor of the son. Id. The father’s attempt to appeal the
judgment to the superior court was dismissed as untimely and he then filed in the
superior court a petition to quiet title, which contained the same claims that he had
previously filed as counterclaims in the magistrate court dispossessory action. Id. The
son moved to dismiss the complaint, and the superior court granted the motion, ruling
“that the doctrine of res judicata barred [the father] from reviving in superior court
the same claims that he had previously asserted as counterclaims in magistrate court.”
Id. The Supreme Court of Georgia reversed, concluding that “although the magistrate
5 court had jurisdiction over [the son’s] dispossessory action, it did not have
jurisdiction to render a binding judgment on [the father’s] counterclaims which
included claims for declaratory judgment, to quiet title, and an injunction, and which
sought money damages that exceeded the $15,000 jurisdictional limit of the
magistrate court.” Id. at 385. The Court noted that because the father was the
defendant in the dispossessory action, he did not choose the magistrate court as the
forum in which to bring his counterclaims, but to avoid potential waiver of his
counterclaims, he was required to raise those claims in response to his son’s
dispossessory action in the magistrate court. Id. at 385-386. “However, the statutory
requirement for [the father] to raise his compulsory counterclaims in magistrate court
did not somehow confer jurisdiction in that court to resolve these claims over which,
by law, it had no jurisdiction.” Id. at 386. Thus, our Supreme Court concluded that
the superior court erred in granting the son’s motion to dismiss, finding that “[d]ue
to the magistrate court’s lack of jurisdiction over the [father’s] counterclaims . . . , it
was not a ‘court of competent jurisdiction’ to resolve these claims on the merits, and
the doctrine of res judicata did not bar [the father] from re-asserting these same claims
in superior court.” Id. See also WPD Center, LLC v. Watershed, Inc., 330 Ga. App.
289, 289-290 (1) (a) (765 SE2d 531) (2014) (because magistrate court was not a court
6 of competent jurisdiction to resolve tenant’s counterclaims on the merits, superior
court correctly ruled that res judicata did not bar tenant from reasserting its
counterclaims in superior court; the counterclaims had been previously filed in
dispossessory action in magistrate court but dismissed with prejudice when the
dispossessory was dismissed).1 We similarly conclude that the superior court erred
in granting Habif’s motion to dismiss.
2. Tate’s remaining enumerations challenge the judgment of the magistrate
court. But, this Court cannot address those enumerations because the only “[t]he only
avenue of appeal available from [a] magistrate court judgment is provided by OCGA
§ 15-10-41 (b) (1), which allows for a de novo appeal to the state or superior court.”
Handler v. Hulsey, 199 Ga. App. 751 (406 SE2d 225) (1991).
Judgment reversed. McFadden, P. J., and Markle, J., concur.
1 Oh v. Bell, 221 Ga. App. 276 (470 SE2d 807) (1996), relied upon by Habif, is inapposite because the appellee in that case failed to assert his current claims in superior court as compulsory counterclaims in the appellant’s prior magistrate court action. Id. at 278. Here, Tate asserted his compulsory counterclaims in the magistrate court action, but instead of transferring the case to another court with jurisdiction over the case, the magistrate judge simply dismissed them.